from a phone booth located 100 feet from the workplace of the
person whose DNA was found in the victim: Badgerow #2, at
para. 175. Had the trial judge chosen to go down the road of
providing a detailed recitation of the evidence tending to confirm
or contradict the tracing evidence, the trial judge would have no
doubt referred to the DNA evidence. That reference could only
have hurt the defence.
(c) The hearsay dangers
[ 43] This submission comes down to a claim that the trial judge
did not properly alert the jury to the hearsay dangers associated
with the specific evidence led in this case. The appellant main-
tains that his failure to do so left the jury unable to properly con-
sider the reliability of the tracing evidence.
[ 44] To properly assess this submission, one must appreciate
how the jury instructions came to be worded as they were. The
trial judge provided counsel with a draft jury charge. Counsel for
the appellant took strong exception, expressed over some 17 pages
of transcript, to the proposed instructions on the tracing evidence.
He objected to certain specific comments, but also argued that the
overall thrust of the instructions missed the position of the
defence and failed to address the concerns relating to the reliability
of the tracing evidence. After hearing counsel’s objections, the trial
judge asked defence counsel to draft a “caution” in respect of the
hearsay evidence for possible inclusion in the final instructions.
[ 45] Defence counsel provided the trial judge with a draft “
caution”. Most of that draft found its way into the jury instructions.
Some of it was repeated verbatim, including the instruction that
the absence of an opportunity to cross-examine the individuals
involved in the tracing rendered the evidence “less reliable”. This
was the key feature of the defence attack on the reliability of the
 The defence did not object to the revised version of the
instructions that the trial judge gave to the jury in respect of the
tracing evidence. Nor did counsel suggest that there was any substantive difference between his draft “caution” and the caution
ultimately delivered by the trial judge.
[ 47] In my view, the trial judge, by repeating parts of counsel’s
proposed draft and paraphrasing other parts, brought home to
the jury the direct connection between the inability to cross-examine persons involved in the tracing, or to examine records
relevant to the tracing, and the reliability of the claim that the call
could be traced to the phone booth outside of Gate 6 at Dofasco.
The trial judge said: